Bid to toss suit against antigay flyer

VIRGINIA

Washington Post

Updated
12:05 am PST, Wednesday, November 7, 2012

Public Advocate of the United States, a conservative nonprofit organization led by Eugene Delgaudio, a Republican county supervisor in Virginia, filed a motion Friday to dismiss a federal complaint alleging that the organization illegally used a same-sex couple's engagement photo on anti-same-sex marriage campaign flyers in Colorado.

The Southern Poverty Law Center, representing Tom Privitere, Brian Edwards and Kristina Hill, filed the complaint against Public Advocate in September in U.S. District Court in Colorado. The Southern Poverty Law Center also designated Public Advocate as a hate group this year.

Privitere and Edwards - a New Jersey couple - were pictured on the anti-same-sex marriage campaign mailers sent out by Public Advocate in June. The original photograph, taken by Hill in 2010 and posted on Privitere and Edwards' wedding blog, shows the couple kissing in front of the New York skyline. In one of two altered images featured on the widely distributed Public Advocate campaign flyer, the city backdrop is replaced by a country setting, and a bright red banner with the words "State Senator Jean White's Idea of Family Values?" cuts across the couple's chests.

The lawsuit alleges that Public Advocate's use of the image was in violation of federal copyright law. It also says that the group did not have permission to use Privitere and Edwards' likenesses and that the unauthorized use of their photograph resulted in emotional trauma and threats against the couple.

Public Advocate, represented by the Arrington Law Firm in Centennial, Colo., said that the use of the couple's photograph was fair and protected by the First Amendment.

"This case is about one and only one thing: the politics of same-sex unions," Public Advocate's memorandum stated.

Because the plaintiffs acknowledged that Public Advocate used the photograph to express its view on the issue of same-sex unions, "this admission is fatal to their case," the memorandum said. "Public Advocate was engaging in the type of political speech the protection of which is at the very core of the freedom of speech guaranteed by the First Amendment."

Public Advocate also says that the plaintiffs could not have had a reasonable expectation of privacy, because the photograph was posted on a blog where "anyone in the world with access to a computer could view it."

Privitere, Edwards and Hill have said that the alterations to the original image - the changed background and the bold red slash across the couple's chests - were especially disturbing. Public Advocate maintained in its court filing that those changes were, in part, what justified "fair use" of the photograph.

Public Advocate, which regularly raises more than $1 million annually, according to IRS records, has a long history of controversial mass mailings, including one widely distributed e-mail last year that showed a murder scene with bloodstains in the color of a rainbow, a symbol of the gay, lesbian, bi-sexual and transgender community.

Delgaudio, the longtime leader of Public Advocate, has claimed in past statements that airport pat-down procedures and anti-bullying legislation demonstrate the growing influence of "radical homosexuality."